Tribunals not bound by the laws of evidence

Update, 10 August 2017:  It once seemed to me having read Pizer’s Annotated VCAT Act (2015) at [8.60] that there was an argument to be made that the Evidence Act 2008 might have some operation to the extent that it is not over-ridden by s. 98 of the VCAT Act 1998, in that the Evidence Act 2008 empowers courts to do certain things which might not be described as part of the ‘rules of evidence’ referred to in s. 98. The Evidence Act 2008’s definition of ‘Victorian court’ (in whose proceedings the Act is said to apply) is inclusive of tribunals bound by the law of evidence, rather than excluding all tribunals which are not bound by the law of evidence, and VCAT has been regarded as a ‘court’ for various purposes. But the Court of Appeal has effectively decided (albeit without considering my thought) that the Evidence Act 2008 simply does not apply in VCAT: Karakatsanis v Racing Victoria Limited [2013] VSCA 305 at [32] – [34].

Update, 9 August 2017:  To gather the law together in one place:

(a) Pizer & Nekvapil, Pizer’s Annotated VCAT Act treats this question at [VCAT.98.160] citing Curcio v. Business Licensing Authority (2001) 18 VAR 155 at [26]; Pearce v. Button (1986) 8 FCR 408 at 422; Golem v TAC (2002) VAR 265 at [9(iv)]; Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd [2011] VSC 191 at [59]; and Medical Practitioners Board of Victoria v Saddik [2010] VCAT 366 at [44].

(b) A reader commended Justice Giles’s article ‘Dispensing with the Rules of Evidence’ at Vol 7 No 3 Australian Bar Review.

(c) Consider also Danne v The Coroner, [2012] VSC 454, noted here.

Original post: Here is a useful collection of interstate and federal law about what statutes are actually to be taken to mean when they say that a tribunal is not bound by the laws of evidence (like VCAT), from Justice Refshauge’s reasons in Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283:

‘4. The ACAT is not bound by the rules of evidence (s 8 of the ACAT Act) and may inform itself in any way it considers appropriate. Such provisions are common, but do not mean that the Tribunal has no constraints on its procedures. The ACAT is, for example, bound by the requirement to observe natural justice and procedural fairness (s 7(b) of the ACAT Act).

5. In A v Director of Family Services (1996) 132 FLR 172 at 177, Higgins J held that a provision of this kind did not render the rules of evidence irrelevant. His Honour continued “[t]hey should still be applied unless, for sound reason, their application is dispensed with”.

6. That approach was doubted by Miles CJ in De Domenico v Marshall (1999) 153 FLR 437 at 442-3; [26] – [27] where his Honour considered that such an approach may not be appropriate for an administrative tribunal.

7. In R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256, Evatt J made the important point that the rules of evidence should not simply be ignored because they “represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”. This, however, must be read carefully with the caution expressed by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256, namely:

[t]hat does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule.

8. Where, as in this case, the ACAT is exercising a function that was formerly exercised by a court, namely debt recovery of sums less than $10,000 (ss 16, 17 and 18 of the ACAT Act, s 266A of the Magistrates Court Act 1930 (ACT)), the ACAT must have regard to the need to ensure appropriate levels of proof by reliable evidence and have regard to the reasons why particular rules of evidence exist.

9.  In deciding its approach to evidence, it seems likely that the ACAT would be bound, for example, by common law privileges such as legal professional privilege and “without prejudice” privilege. See, for example, Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission(2002) 213 CLR 543 at 552; [10]. It would also appear that the ACAT should not rely on evidence that is irrelevant and, in order to ensure procedural fairness, may be constrained in the appropriateness of the admission of hearsay evidence, not excluding it necessarily, but ensuring that it may be required in an appropriate case to permit cross-examination.

10. Thus, as Kiefel J observed in Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579 at 585-6; [25], decisions must not be made without evidence having probative force, inferences must not be drawn without evidence and the tribunal must not base its conclusion on its own view of a matter which requires evidence.

11. Recently, the Full Court of the Federal Court of Australia has given some quite detailed consideration of the relevance of the rules of evidence in hearings by tribunals not bound by such rule.  Thus, in Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540, the Court considered common law principles such as those set out in cases such as Browne v Dunn (1894) 6 R 67 at 70-1 and Briginshaw v Briginshaw (1938) 60 CLR 336 at 347, 361-2 do not apply as rules of law in such tribunals, which I consider includes the ACAT, though the underlying principles of fairness, natural justice, reliance on credible and relevant evidence which underpin those rules remain applicable. The approach is to be determined from the circumstances of the precise case.’

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